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Reasons by the Adjudicator

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					Reasons by the Adjudicator



June 18, 2002
Vancouver, B.C.

PH 00-02



THE REGISTRAR: Order.



      In the matter of the public hearing into the complaint against Sergeant
Sherron Bayley and Constable Jodyne Keller of the Vancouver Police
Department. This hearing is now open, the Honourable Mr. Kenneth Scherling
as adjudicator.

THE ADJUDICATOR: Before dealing with the reasons, I will say that Madam
Registrar has a copy of the reasons which she is going to have typed by the
court reporter and distributed to counsel, so it might be a couple of days. The
following is the judgment.

Introduction



1. This proceeding is governed by the provisions of the Police Act, R.S.B.C.,
1996, chapter 367 and amendments thereto. Part 9 provides a statutory

framework for a certain level of civilian oversight into the conduct of municipal
police officers. The Police Complaint Commissioner is authorized to investigate
complaints against police officers, to review disciplinary proceedings of police
forces, and can order "public hearings" into alleged misconduct of police officers.

2.The public hearings are to be conducted by "adjudicators." Their function is to
decide on a balance of probabilities whether a police officer has committed a
disciplinary default under the Code of Professional Conduct Regulation, B.C.
regulation 205/98. If there is a finding that default occurred, the adjudicator shall
impose a disciplinary or corrective measure under section 19 of that Code, which
varies from a written reprimand to dismissal.
This Proceeding



3. On December 12th, 2000, a Notice of Public Hearing was issued by the
Police Complaint Commissioner directed to Sergeant Sherron Bayley and
Constable Jodyne Keller, also known as Dyck, and to four other respondents, all
members of the Vancouver Police Department. The notice, Exhibit 1, sets out
ten counts of alleged disciplinary defaults against the respondents in relation to
their conduct during the execution of a search warrant on March 4th, 1998 at
apartment 1 - 2273 Commercial Drive, Vancouver, and while they testified at a
criminal trial between September 21st and 24th, 1999.

4. Alleged disciplinary defaults against the four respondents were withdrawn by
Commission counsel during the course of these proceedings.

5. The public hearing commenced with a Case Management Conference on
January 23rd, 2001. A further eight conferences were held on various dates until
their conclusion on June the 10th, 2002. On June 10th, 11th, and 12th, evidence
was heard from 11 witnesses. On June 13th, Commission counsel closed his
case after filing the remaining exhibits.

6. Exhibit 10 was titled "Amendment to Notice of Hearing - Count 1." It sets out
alleged disciplinary defaults that Bayley and Keller, between March 4th, 1998
and September 13th, 1999, engaged in discreditable conduct contrary to section
1(a) of the Police (Discipline) Regulation, B.C. Reg. 330/75, Appendix A, and
section 4(1)(a) of the Code. In addition to an allegation of destroying personal
property by emptying the contents of one bottle of liquor by each respondent and
the taking of a photograph with Denault's camera by the respondent Keller, there
is an additional allegation against each respondent. It is that they did, from
March 14th, 1998 to September 13th, 1999, fail to report to an officer and to
Crown counsel information or evidence material to the prosecution.

7. Both respondent counsel stated that their clients admitted that the disciplinary
default occurred and the adjudicator made such a finding.

8. Exhibit 6 was titled "Admissions." The document includes a "Notice of
Decision" and an "Admission of Discipline Default and Acceptance of Disciplinary
and/or Corrective Measure." In December, 2000, both respondents admitted the
discipline default and accepted the disciplinary measures on allegation 1:
namely, suspension without pay for three scheduled working days.

   9.        Submissions By Commission Counsel
   Mr. Doyle admits the following: a, the disposition should be the same for both
   respondents; b, the appropriate disposition should be a suspension without
   pay for four or five days rather than the more serious forms of discipline; c,
   Section 19(2) of the Code should apply here, where corrective measures take
   precedence over those that seek to blame and punish; d, there is little case-
   law on failure to report. He did refer to a Case Summary from Ontario, Board
   File number C026/92, involving the complainant Foley and a police officer
   Kirby. The officer failed to report a statement which was relevant to the
   defence at a criminal trial. The penalty imposed was forfeiture of two days
   pay.



Submissions By Mr. Peck, Counsel For Sergeant Bayley



10. Mr. Peck submits that this process is similar to a sentence appeal and the
tribunal should look at the corrective measures already applied. Counsel then
dealt with the background of Sergeant Bayley.

She was born March, 1956, in Vancouver, and is presently 46 years old. She
joined the Vancouver Police Department on August 3rd, 1976 when she was 20
years old. She now has 26 years service. She has served the department
honourably and has received four commendations, which were in 1977,1992,
1996, and 1998. She is highly regarded on the force and has been a mentor.
She lives in Delta and is married to a sergeant in the R.C.M.P. who is a member
of Vancouver Major Crimes. They have a son. She has also been a board
member for the Boys & Girls Club in Delta during 2000 and 2001. Counsel
further states she had a clear record until this incident, which has had extraneous
effects. It has resulted in a suspension and her having to take a course in search
warrants. She was

a constable at the time, on March 4th, 1998, and was promoted to sergeant in
1999, and was also placed on probation for six months. Mr. Peck further submits
that section 19 of the Code is discretionary and went through the aggravating
and mitigating circumstances in section 19(4) as they applied to Bayley. He also
referred to a disposition on the Commissioner's website where a failure to report
resulted in a verbal reprimand. Mr. Peck concluded that since Bayley had

already served a sanction, there was no need for anything more than a
reprimand or, in the alternative, a concurrent disposition pursuant to section
61(6)(c) of the Police Act "to affirm...the disciplinary or corrective measures
proposed by the discipline authority."
Submissions By Mr. Donaldson, Constable For Constable Keller



11. Mr. Donaldson stated that he adopted all the remarks and submissions of
Mr. Peck, especially with respect to section 19. He filed a detailed booklet of
materials, which included background material concerning Keller, a so-called
penalty report, submissions, and 12 letters of reference from police officers,
family members, et cetera. The letters are all self-explanatory and indicate her
good character and dedication to police work. It is somewhat unusual for a
family to have so many members, past and present, who have had careers in
policing with the Vancouver Police Department.

Counsel in his submissions and material dealt with the background of Constable
Keller. She was born July 20th, 1971, in Vancouver, and is presently 30 years
old. She joined the Vancouver police department in November, 1995 after being
with the Canadian Forces Military Police. As a result of this incident, she has also
suffered. She was suspended for three days without pay and taken off active
service for approximately nine months. She also comes from a close-knit family,
which probably has given her much support during these difficult times. She has
demonstrated remorse like Sergeant Bayley by accepting the punishment of the
internal discipline authority. Mr. Donaldson concludes in his material by

submitting "it is a fundamental principle of imposing a 'sentence' that it must be
proportionate to the gravity of the delict and to the degree of responsibility of the
offender." He submits that no additional suspension would be proportionate to
the gravity of the delict, bearing in mind the punishment previously imposed. In
summary, he says, no additional penalty is necessary.



Conclusion

12. Section 19(1) of the Code provides that after a disciplinary default has
occurred, the discipline authority may impose one or more of the disciplinary or
corrective measures in relation to the police officer concerned, as set out in (a) to
(h). The penalty imposed in this case by the internal discipline authority was
pursuant to (d), suspension without pay for three working days. Section 19(4)
states that aggravating and mitigating circumstances should be considered: a,
even though the pouring out of the liquor is not the most serious breach, the
failure to report may be an aggravating circumstance; b, both respondents have
an excellent record of employment with no record of discipline prior to this
incident; c, the impact of the disciplinary and corrective measures has had an
impact on both respondents; d, the likelihood of future breaches of this Code are
unlikely; e, both respondents have accepted responsibility for the breaches by
their admissions.

In considering all these circumstances, the submissions of counsel, and the
exhibits, including the fact that the respondents have suffered the stigma of going
through an internal disciplinary investigation and public hearing, it is my view that
this tribunal should and does confirm the disciplinary or corrective measures
imposed by the discipline authority pursuant to section 61(6)(c) of the Police Act.



MR. PECK: I should just say on the record that on behalf of myself and Mr.
Barclay and Mr. Donaldson, we appreciate the fair and reasonable manner with
which Mr. Doyle conducted this hearing and we are grateful for his approach.
Seeing as how this is probably the last time I'll ever be in front of you, I must say
it's been a pleasure again, sir.

THE ADJUDICATOR: Thank you, Mr. Peck.

That will be on the record, Mr. Doyle.



MR. DOYLE: Thank you. Thank you, sir.

THE ADJUDICATOR: I must comment just in closing that I think both Sergeant
Bayley and Constable Keller have been well represented in this matter by their
counsel.

Thank you.



THE REGISTRAR: Order.

(PROCEEDINGS CONCLUDED)

SIGNED

_________________________________

The Honourable Kenneth J. Scherling
Adjudicator

				
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